www.elsblog.org - Bringing Data and Methods to Our Legal Madness

20 March 2006

How Do We Know?

Over the past week or so I have been slogging through a
stack of texts I am considering adopting for the introductory course on
research methods (which includes some epistemology of science, research design,
basic statistics) taught in my department each fall for first-year graduate
students. This is the first time I will be teaching this course so the choice
of text(s) looms particularly large. And, to complicate matters, we have
recently added an an introduction to formal modeling course in the second semester
for our graduate students, which they will take in addition to a course on
statistics (beyond that which is covered in the first-semester course). So, I
am very cognizant that what I cover in the first-semester course needs to give
students preparation for not one but two courses they will take in their second
semester. (I expect that neither of my colleagues who will be teaching those
second-semester courses will find the students as prepared as they would like
them to be but, being good natured folks, I am sure they will be patient with
both the students and me.) I think that the sort of issues with which I am
grappling in (re)designing this course are issues that speak more broadly to
what it is that those interested in empirical legal studies care about. Let me
(hopefully) provoke a discussion by offering a two guiding principles on which
I am relying:

1. Human beings naturally seek to discover patterns of
behavior in others and natural phenomena. Knowing what the weather is generally
like in St. Kitt's in the spring, for example, can help us plan our vacation
wardrobe. Knowing how people generally behave under certain conditions helps us
navigate our own lives. In our everyday lives, we certainly understand that
neither people nor weather are entirely predictable, but we do make predictions
about both and take those predictions into account when we make decisions about
what we ourselves will do. I want to connect these intuitions about what we do
in our everyday lives to the what we do as social scientists.

2. Human beings "know" a lot of things. But, much
of what we might "know" we might be hard pressed to convince others
of. I might "know," for example, that heaven exists. But how can I
prove this to someone else? What are the appropriate tools at my disposal for
proving what it is I "know"? Knowledge in the context of social
science is, of course, much more narrowly defined in the sense that it does not
include within its purview the existence of heaven. Or, to borrow from Stephen
Jay Gould, it is part of a different magisteria than that which deals with the
existence of heaven. I want to be clear about how it is that we say we know
something in the social sciences. That is, what are the rules of evidence?

In the context of empirical legal studies, both of these
guiding principles are relevant. The concept of the rule of law is suppose to
provide regularity, impose some order. That's the point of it. But, as everyone
(?) knows, law does not mechanistically require a particular outcome. But, as
everyone (?) also knows, judges, though not perfectly predictable in their
behavior, certainly demonstrate some level of consistency in their behavior.
So, somewhere in the intersection of law and human behavior, there is some
level of predictability.

As for knowledge and what we know, I might "know,"
for example, that the ideological predispositions of judges influences their
decisions. The key is in convincing others of this claim of knowledge. That
requires some agreed upon standards for evaluating the evidence. At the extreme
I "know" this only if attitudes are completely deterministic and
there are no exceptions. But, obviously, that is a standard that is too rigid
and (hopefully) is not one to which anyone ascribes. So, how do we know?

Comments

The problem lies in whether you think that the concept of justification is deterministic (only one correct answer), structuralistic (separating better answers from weaker ones), or skeptical (knowledge is a construct of the powerful). For too long scholars in both law and epistemology have relied upon a deterministic vision of their subject. Much of the scholarship in the 20th century, in fact, is the recognition that determinism as a modality is flawed -- structuralism represents the best choice. Hence, in both law and science (and philosophy) -- in fact in every rational endeavor whatsoever -- we are searching not for certainty, but merely for a rational way to delineate the relative worth of claims to know. I would recommend Stephen Hetherington's recent book on the two dogmas of epistemology to see an objectivist view of knowledge that is clearly working within a structuralist paradigm.

By the way, ask your self this: if ideology influences justices -- which is surely does -- does it not also influence empirical scientists? And if scientists can temper ideology through rationality, one would have a hard time suggesting that that the cognitive process that underlies rationality is not also capable of being efficacious in the judicial mind as well. In both cases, the search for merit exists, as does the desire to validate world views. You will never take Kant out of the mind; nor will you take political passion either. This is simply the way that humans are constituted.